Wakilii

Kundanlal Restaurant v Devshi and Company (Civil Appeal No. 76 of 1951)

East African Court of Appeal · [1952] EACA 77 · 1952 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya order granting conditional leave to defend in summary judgment application
Decision
Matter remitted to Supreme Court for trial with unconditional leave to defend granted to appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a defendant raises triable issues on affidavit in response to a summary judgment application, unconditional leave to defend must be granted. A condition of payment into court should only be imposed where there are good grounds for believing the defence is a sham, not on mere suspicion. An appeal from a judgment entered following non-compliance with conditional leave to defend is competent and permits examination of the validity of the underlying order.

Outcome

Matter remitted to Supreme Court for trial with unconditional leave to defend granted to appellant

Facts

The respondent sued the appellant on a specially endorsed plaint for goods sold and delivered and filed a motion for summary judgment under Order 35. The appellant sought leave to defend, filing a statement of defence and affidavit alleging no privity of contract between the parties, that goods were sold to one Chagganlal who was given exclusive credit, and that the transactions were void for illegality under Price Control Regulations. The respondent filed two affidavits in reply, including one from Chagganlal admitting the transactions and the firm's liability. The Supreme Court granted leave to defend conditional on payment of Sh. 7,000 into court within seven days. Leave to appeal was granted but no formal order was drawn up. The appellant neither complied with the condition nor filed an appeal. On the respondent's application, judgment was entered for the respondent. The appellant then appealed from the judgment.

Issues

  1. Whether an appeal lies from a judgment entered following non-compliance with conditional leave to defend, where no appeal was taken from the order granting conditional leave.
  2. Whether the lower court erred in granting conditional leave to defend where triable issues were raised on affidavit.
  3. Whether a condition of payment into court should be imposed where a defendant raises a reasonable ground of defence.

Orders

  • Appeal allowed with costs.
  • Order of the Supreme Court set aside.
  • Appellant granted unconditional leave to defend as to the whole of the respondent's claim.
  • Leave to file a fresh defence within fifteen days.
  • Appellant to have costs of and incidental to the application for judgment and of showing cause against the application.
  • Plaintiff-respondent to pay these costs to defendant-appellant in any event.
  • All other costs incurred in the action to abide the event of the trial or be paid as directed by order made at trial.

Rules and key headnotes

Civil Procedure — Summary Judgment — Appeal from Judgment Following Non-Compliance with Conditional Leave
Where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. An appeal from a judgment entered following non-compliance with conditional leave to defend is competent and permits examination of the validity of the underlying order granting conditional leave.
Civil Procedure — Summary Judgment — Triable Issues — Unconditional Leave to Defend
If there is one triable issue contained in the affidavit supporting the application for leave to appear and defend, then the defendant is entitled to have leave to appear and defend unconditionally.
Civil Procedure — Summary Judgment — Conditional Leave to Defend — When Appropriate
A condition of payment into court ought not to be imposed where a reasonable ground of defence is set up. The condition should only be imposed in cases where the defendant consents or there is good ground in the evidence for believing that the defence set up is a sham defence, which requires something more than mere suspicion.
Civil Procedure — Summary Judgment — Conflicting Affidavits — Assessment at Interlocutory Stage
Where affidavits raise plain assertions on one side and equally plain denials on the other, it is impossible to form any opinion on the merits of the defence until the court has examined the evidence at trial. The court should not prefer one affidavit to another at the summary judgment stage without good grounds for believing one is false.

Legislation cited (4)

  • Civil Procedure Ordinance s.76(1)
  • Order 35 rules 2, 3, 4, 8
  • Order 14 rule 6 of the Rules of the Supreme Court 1883
  • Eastern African Court of Appeal Rules 1925 rule 22

Cases cited (8)

  • Laird v Briggs (1881) 16 Ch D 664
  • Hasmani v Banque du Congo Beige (1938) 5 EACA 89
  • Jacobs v Booth's Distillery Co (1901) 85 LT 262
  • Wing v Thurlow 10 TLR 53
  • Ward v Plumbley 6 TLR 198
  • Bowes v Caustic Soda Co 9 TLR 328
  • Churanjilal & Co v Adam (EACA Civil Appeal No. 22 of 1950)
  • E.A.C.A. Civil Appeal No. 67 of 1951

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kundanlal Restaurant v Devshi and Company (Civil Appeal No. 76 of 1951) [1952] EACA 77 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.